Amended in Assembly April 6, 2016

Amended in Assembly March 17, 2016

California Legislature—2015–16 Regular Session

Assembly BillNo. 2298


Introduced by Assembly Member Weber

February 18, 2016


An act tobegin delete amend Section 13956 of the Government Code, and toend delete amend Section 186.34 of, and to add Section 186.35 to, the Penal Code, relating to criminal gangs.

LEGISLATIVE COUNSEL’S DIGEST

AB 2298, as amended, Weber. Criminal gangs.

begin delete

Existing law generally provides for the compensation of victims and derivative victims of specified types of crimes by the California Victim Compensation and Government Claims Board from the Restitution Fund, a continuously appropriated fund, for specified losses suffered as a result of those crimes. Existing law sets forth eligibility requirements and limits on the amount of compensation the board may award, and requires the application for compensation to be verified under penalty of perjury. Existing law establishes limits on eligibility, including, among others, because of the victim’s involvement in the crime, as specified.

end delete
begin delete

This bill would provide that an application for compensation would not be denied on the basis of the applicant’s membership or applicant’s family member’s membership in, association with, or affiliation with, a gang, or on the basis of the applicant’s designation or applicant’s family member’s designation as a suspected gang member, associate, or affiliate in a shared gang database, as defined.

end delete

Existing law, the California Street Terrorism Enforcement and Prevention Act (act) and provides specified punishments for certain crimes committed for the benefit of, at the direction of, or in association with, a criminal street gang, as specified.begin delete The act authorizes injunctions against specified gang activity, as provided.end delete The act defines a “shared gang database” as having various attributes, including, among others, that the database contains personal, identifying information in which a person may be designated as a suspected gang member, associate, or affiliate, or for which entry of a person in the database reflects a designation of that person as a suspected gang member, associate, or affiliate. Existing law requires a law enforcement agency, before designating a person as a suspected gang member, associate, or affiliate in the database, to provide a written notice to the person’s parent or guardian, if the person is a minor.

This bill would require the notice described above to be provided to an adult before designating a person as a suspected gang member, associate, or affiliate in the database. The bill would require these databases to comply with federal requirements regarding the privacy and accuracy of information in the database, and other operating principles for maintaining these databases. The bill would require local law enforcement, commencing December 1, 2017, and every December 1st thereafter to submit specified data pertaining to the database to the Department of Justice, and would require the Department of Justice, commencing January 1, 2018, and every Januarybegin delete 1stend deletebegin insert 1end insert thereafter, to submit a report containing that information to the CalGang Executive Board and to the Legislature. The bill would require that a person designated as a suspected gang member, associate, or affiliate in a shared gang database who has not been convicted of a violation of gang-related crimes, as specified, within 3 years of the initial designation be removed from the database.

By imposing additional duties on local law enforcement entities, this bill would impose a state-mandated local program.

The bill would establish a procedure for a person designated in a shared gang databasebegin delete or who is subject to a gang injunctionend delete to challenge that designationbegin delete or injunctionend delete through an administrative hearing and appeal to the superior court.

By requiring local law enforcement to implement an appeal process for persons designated in a shared gangbegin delete database or subject to a gang injunction,end deletebegin insert database,end insert this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

begin delete
P3    1

SECTION 1.  

Section 13956 of the Government Code is
2amended to read:

3

13956.  

Notwithstanding Section 13955, a person shall not be
4eligible for compensation under the following conditions:

5(a) An application may be denied, in whole or in part, if the
6board finds that denial is appropriate because of the nature of the
7victim’s or other applicant’s involvement in the events leading to
8the crime, or the involvement of the person whose injury or death
9gives rise to the application.

10(1) Factors that may be considered in determining whether the
11victim or derivative victim was involved in the events leading to
12the qualifying crime include, but are not limited to:

13(A) The victim or derivative victim initiated the qualifying
14crime, or provoked or aggravated the suspect into initiating the
15qualifying crime.

16(B) The qualifying crime was a reasonably foreseeable
17consequence of the conduct of the victim or derivative victim.

18(C) The victim or derivative victim was committing a crime
19that could be charged as a felony and reasonably lead to him or
20her being victimized. However, committing a crime shall not be
21considered involvement if the victim’s injury or death occurred as
22a direct result of a crime committed in violation of Section 261,
23262, or 273.5 of, or for a crime of unlawful sexual intercourse with
24a minor in violation of subdivision (d) of Section 261.5 of, the
25Penal Code.

26(2) If the victim is determined to have been involved in the
27events leading to the qualifying crime, factors that may be
P4    1considered to mitigate or overcome involvement include, but are
2not limited to:

3(A) The victim’s injuries were significantly more serious than
4reasonably could have been expected based on the victim’s level
5of involvement.

6(B) A third party interfered in a manner not reasonably
7foreseeable by the victim or derivative victim.

8(C) The board shall consider the victim’s age, physical
9condition, and psychological state, as well as any compelling health
10and safety concerns, in determining whether the application should
11be denied pursuant to this section. The application of a derivative
12victim of domestic violence under 18 years of age or derivative
13victim of trafficking under 18 years of age shall not be denied on
14the basis of the denial of the victim’s application under this
15subdivision.

16(b) (1) An application shall be denied if the board finds that
17the victim or, if compensation is sought by, or on behalf of, a
18derivative victim, either the victim or derivative victim failed to
19cooperate reasonably with a law enforcement agency in the
20apprehension and conviction of a criminal committing the crime.
21In determining whether cooperation has been reasonable, the board
22shall consider the victim’s or derivative victim’s age, physical
23condition, and psychological state, cultural or linguistic barriers,
24any compelling health and safety concerns, including, but not
25limited to, a reasonable fear of retaliation or harm that would
26jeopardize the well-being of the victim or the victim’s family or
27the derivative victim or the derivative victim’s family, and giving
28due consideration to the degree of cooperation of which the victim
29or derivative victim is capable in light of the presence of any of
30these factors. A victim of domestic violence shall not be determined
31to have failed to cooperate based on his or her conduct with law
32enforcement at the scene of the crime. Lack of cooperation shall
33also not be found solely because a victim of sexual assault,
34domestic violence, or human trafficking delayed reporting the
35qualifying crime.

36(2) An application for a claim based on domestic violence shall
37not be denied solely because a police report was not made by the
38victim. The board shall adopt guidelines that allow the board to
39consider and approve applications for assistance based on domestic
40violence relying upon evidence other than a police report to
P5    1establish that a domestic violence crime has occurred. Factors
2evidencing that a domestic violence crime has occurred may
3include, but are not limited to, medical records documenting
4injuries consistent with allegations of domestic violence, mental
5health records, or that the victim has obtained a permanent
6restraining order.

7(3) An application for a claim based on a sexual assault shall
8not be denied solely because a police report was not made by the
9victim. The board shall adopt guidelines that allow it to consider
10and approve applications for assistance based on a sexual assault
11relying upon evidence other than a police report to establish that
12a sexual assault crime has occurred. Factors evidencing that a
13sexual assault crime has occurred may include, but are not limited
14to, medical records documenting injuries consistent with allegations
15of sexual assault, mental health records, or that the victim received
16a sexual assault examination.

17(4) An application for a claim based on human trafficking as
18defined in Section 236.1 of the Penal Code shall not be denied
19solely because no police report was made by the victim. The board
20shall adopt guidelines that allow the board to consider and approve
21applications for assistance based on human trafficking relying
22upon evidence other than a police report to establish that a human
23trafficking crime as defined in Section 236.1 of the Penal Code
24has occurred. That evidence may include any reliable corroborating
25information approved by the board, including, but not limited to,
26the following:

27(A) A Law Enforcement Agency endorsement issued pursuant
28to Section 236.5 of the Penal Code.

29(B) A human trafficking caseworker, as identified in Section
301038.2 of the Evidence Code, has attested by affidavit that the
31individual was a victim of human trafficking.

32(5) (A) An application for a claim by a military personnel victim
33based on a sexual assault by another military personnel shall not
34be denied solely because it was not reported to a superior officer
35or law enforcement at the time of the crime.

36(B) Factors that the board shall consider for purposes of
37determining if a claim qualifies for compensation include, but are
38not limited to, the evidence of the following:

P6    1(i) Restricted or unrestricted reports to a military victim
2advocate, sexual assault response coordinator, chaplain, attorney,
3or other military personnel.

4(ii) Medical or physical evidence consistent with sexual assault.

5(iii) A written or oral report from military law enforcement or
6a civilian law enforcement agency concluding that a sexual assault
7crime was committed against the victim.

8(iv) A letter or other written statement from a sexual assault
9counselor, as defined in Section 1035.2 of the Evidence Code,
10licensed therapist, or mental health counselor, stating that the
11victim is seeking services related to the allegation of sexual assault.

12(v) A credible witness to whom the victim disclosed the details
13that a sexual assault crime occurred.

14(vi) A restraining order from a military or civilian court against
15the perpetrator of the sexual assault.

16(vii) Other behavior by the victim consistent with sexual assault.

17(C) For purposes of this subdivision, the sexual assault at issue
18shall have occurred during military service, including deployment.

19(D) For purposes of this subdivision, the sexual assault may
20have been committed off base.

21(E) For purposes of this subdivision, a “perpetrator” means an
22individual who is any of the following at the time of the sexual
23assault:

24(i) An active duty military personnel from the United States
25Army, Navy, Marine Corps, Air Force, or Coast Guard.

26(ii) A civilian employee of any military branch specified in
27clause (i), military base, or military deployment.

28(iii) A contractor or agent of a private military or private security
29company.

30(iv) A member of the California National Guard.

31(F) For purposes of this subdivision, “sexual assault” means an
32offense included in Section 261, 262, 264.1, 286, 288a, or 289 of
33the Penal Code, as of the date the act that added this paragraph
34was enacted.

35(c) (1) Notwithstanding Section 13955, no person who is
36convicted of a violent felony listed in subdivision (c) of Section
37667.5 of the Penal Code may be granted compensation until that
38person has been discharged from probation or has been released
39from a correctional institution and has been discharged from parole,
40or has been discharged from postrelease community supervision
P7    1or mandatory supervision, if any, for that violent crime. In no case
2shall compensation be granted to an applicant pursuant to this
3chapter during any period of time the applicant is held in a
4correctional institution, or while an applicant is required to register
5as a sex offender pursuant to Section 290 of the Penal Code.

6(2) A person who has been convicted of a violent felony listed
7in subdivision (c) of Section 667.5 of the Penal Code may apply
8for compensation pursuant to this chapter at any time, but the award
9of that compensation may not be considered until the applicant
10meets the requirements for compensation set forth in paragraph
11(1).

12(d) The board shall not deny an application for compensation
13on the basis of the applicant’s membership or applicant’s family
14member’s membership in, association with, or affiliation with, a
15gang, or on the basis of the applicant’s designation or applicant’s
16family member’s designation as a suspected gang member,
17associate, or affiliate in a shared gang database as defined in
18Section 186.34 of the Penal Code.

end delete
19

begin deleteSEC. 2.end delete
20
begin insertSECTION 1.end insert  

Section 186.34 of the Penal Code is amended to
21read:

22

186.34.  

(a) (1) For purposes of this section, “shared gang
23database” shall mean any database that satisfies all of the following:

24(A) Allows access for any local law enforcement agency.

25(B) Contains personal, identifying information in which a person
26may be designated as a suspected gang member, associate, or
27affiliate, or for which entry of a person in the database reflects a
28designation of that person as a suspected gang member, associate,
29or affiliate.

30(C) Is subject to Part 23 of Title 28 of the Code of Federal
31Regulations. If federal funding is no longer available to a database
32through the federal Omnibus Crime Control and Safe Streets Act
33of 1968 (42 U.S.C. Sec. 3711 et seq.), a database shall not have
34to satisfy this subparagraph to meet the definition of a “shared
35gang database.”

36(2) A “shared gang database” does not include dispatch operator
37reports, information used for the administration of jail or custodial
38facilities, criminal investigative reports, probation reports, or
39information required to be collected pursuant to Section 186.30.

P8    1(3) Notwithstanding subparagraph (C) of paragraph (1), a
2“shared gang database” includes the CalGang system, operated
3pursuant to Part 23 of Title 28 of the Code of Federal Regulations.

4(b) Notwithstanding subparagraph (C) of paragraph (1) of
5subdivision (a), a shared gang database, as defined in this section,
6shall retain records related to the gang activity of the individuals
7in the database consistent with the provisions contained in Section
823.20(h) of Title 28 of the Code of Federal Regulations.

9(c) (1) Commencing December 1, 2017, and annually on
10December 1 thereafter, any law enforcement agency that elects to
11utilize a shared gang database, as defined in subdivision (a), shall
12submit a report to the Department of Justice that contains, by ZIP
13Code, referring agency, race, gender, and age, the following
14information:

15(A) The number of persons included in the database on the day
16of reporting.

17(B) The number of persons added to the database during the
18immediately preceding 12 months.

19(C) The number of requests for removal of a person from the
20database received during the immediately preceding 12 months.

21(D) The number of requests for removal of a person from the
22database that were granted during the immediately preceding 12
23months.

24(E) The number of persons automatically removed from the
25database during the immediately preceding 12 months.

26(2) Commencing January 1, 2018, and annually on December
271 thereafter, the Department of Justice shall submit a report to the
28CalGang Executive Board and to the Legislature that contains the
29information collected pursuant to paragraph (1).

30(3) A report submitted to the Legislature pursuant to subdivision
31(a) shall comply with Section 9795 of the Government Code.

32(d) (1) To the extent a local law enforcement agency elects to
33utilize a shared gang database, as defined in subdivision (a), prior
34to a local law enforcement agency designating a person as a
35suspected gang member, associate, or affiliate in a shared gang
36database, or submitting a document to the Attorney General’s
37office for the purpose of designating a person in a shared gang
38database, or otherwise identifying the person in a shared gang
39database, the local law enforcement agency shall provide written
40notice to the person, and shall, if the person is under 18 years of
P9    1age, provide written notice to the person and his or her parent or
2 guardian, of the designation and the basis for the designation,
3unless providing that notification would compromise an active
4criminal investigation or compromise the health or safety of the
5minor.

6(2) The notice described in paragraph (1) shall describe the
7process for the person,begin delete orend deletebegin insert or,end insert if the person is under 18 years of age,
8for his or her parent or guardian, or an attorney working on behalf
9of the person, to contest the designation of the person in the
10database. The notice shall also inform the person of the reason for
11his or her designation in the database.

12(e) (1) (A) A person, or, if the person is under 18 years of age,
13his or her parent or guardian, or an attorney working on behalf of
14the person may request information of any law enforcement agency
15as to whether the person is designated as a suspected gang member,
16associate, or affiliate in a shared gang database accessible by that
17law enforcement agency and what law enforcement agency made
18the designation. A request pursuant to this paragraph shall be in
19writing.

20(B) If a person about whom information is requested pursuant
21to subparagraph (A) is designated as a suspected gang member,
22associate, or affiliate in a shared gang database by that law
23enforcement agency, the person making the request may also
24request information as to the reason for the designation for the
25purpose of contesting the designation as described in subdivision
26(f).

27(2) The law enforcement agency shall provide information
28requested under paragraph (1), unless doing so would compromise
29an active criminal investigation or compromise the health or safety
30of the person if the person is under 18 years of age.

31(3) The law enforcement agency shall respond to a valid request
32pursuant to paragraph (1) in writing to the person making the
33request within 30 calendar days of receipt of the request.

34(f) Subsequent to the notice described in subdivision (d), the
35person to be designated as a suspected gang member, associate,
36or affiliate, or his or her parent or guardian, may submit written
37documentation to the local law enforcement agency contesting the
38designation. The local law enforcement agency shall review the
39documentation, and if the agency determines that the person is not
40a suspected gang member, associate, or affiliate, the agency shall
P10   1remove the person from the shared gang database. The local law
2enforcement agency shall provide the person and his or her parent
3or guardian with written verification of the agency’s decision
4within 30 days of submission of the written documentation
5contesting the designation. If the law enforcement agency denies
6the request for removal, the notice of its determination shall state
7the reason for the denial. The person may appeal the denial
8pursuant to Section 186.35.

9(g) A person designated as a suspected gang member, associate,
10or affiliate in a shared gang database who has not been convicted
11of a violation of Section 186.22 within three years of the initial
12designation shall be removed from the database.

13(h) Nothing in this section shall require a local law enforcement
14agency to disclose any information protected under Section 1040
15or 1041 of the Evidence Code or Section 6254 of the Government
16Code.

17

begin deleteSEC. 3.end delete
18
begin insertSEC. 2.end insert  

Section 186.35 is added to the Penal Code, to read:

19

186.35.  

(a) A person who is listed by a law enforcement agency
20in a shared gang databasebegin delete or is subject to a gang injunctionend delete as a
21gang member, suspected gang member, associate, or affiliate may
22contest that designationbegin delete or being subject to the gang injunctionend delete
23 pursuant to this section. The person may contest the designation
24initially pursuant to thisbegin delete section, or otherend deletebegin insert section orend insert a denial as
25specified in subdivision (f) of Section 186.34.

26(b) The person may request an administrative hearing to review
27the designationbegin delete decision or applicability of the injunction. A person
28may challenge both a designation and gang injunction in one
29proceeding.end delete
begin insert decision.end insert

30(c) An administrative hearing shall be held within 90 calendar
31days following the receipt of a request for an administrative
32hearing. The person requesting the hearing may request one
33continuance, not to exceed 21 calendar days.

34(d) The administrative hearing shall be conducted in accordance
35with written procedures established by the agency. The hearing
36shall provide an independent, objective, fair, and impartial review
37of a contested designation.

38(e) The agency shall appoint or contract with qualified examiners
39or administrative hearing providers that employ qualified examiners
40to conduct the administrative hearings. Examiners shall
P11   1demonstrate those qualifications, training, and objectivity necessary
2to conduct a fair and impartial review.

3(f) The examiner’s decision following the administrative hearing
4may be personally delivered to the person by the examiner or sent
5 by first-class mail, and, if the designation is not canceled, shall
6include a written reason for that denial.

7(g) Within 30 calendar days after the mailing or personal
8delivery of the examiner’s decision, the person may seek review
9by filing an appeal to be heard by the superior court where the
10appeal shall be heard de novo. A copy of the notice of appeal shall
11be served in person or by first-class mail upon the agency by the
12person. For purposes of computing the 30-calendar-day period,
13Section 1013 of the Code of Civil Procedure shall be applicable.

14(h) The fee for filing the notice of appeal is as provided in
15Section 70615 of the Government Code. The court shall notify the
16person of the appearance date by mail or personal delivery. The
17court shall retain the fee under Section 70615 of the Government
18Code regardless of the outcome of the appeal. If the court finds in
19favor of the person, the amount of the fee shall be reimbursed to
20the person by the agency.

21(i) The law enforcement agency has the burden of demonstrating
22active gang membership, associate status, or affiliate status to the
23court by clear and convincing evidence.

24(j) A successful challenge to the designation shall result in the
25removal of the person from the shared gangbegin delete database or the
26contestant not being subject to the injunction, or both.end delete
begin insert database.end insert

27

begin deleteSEC. 4.end delete
28
begin insertSEC. 3.end insert  

If the Commission on State Mandates determines that
29this act contains costs mandated by the state, reimbursement to
30local agencies and school districts for those costs shall be made
31pursuant to Part 7 (commencing with Section 17500) of Division
324 of Title 2 of the Government Code.



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